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July 30, 2009 04:46 AM UTC

The TABOR Battle, Federal Court Re-Mix

  • by: Patrick Sean Byrne

( – promoted by ClubTwitty)

Well well well.

At today’s meeting of the Colorado General Assembly’s Long Term Fiscal Stability commission, members of the public were invited to give brief remarks before the commission regarding what to do to help solve the perpetual fiscal crisis caused by Colorado’s constitutionally-enshrined Gordian knot of competing, internally inconsistent, arbitrary, and meaningless fiscal formulas.

One of the citizens who gave testimony was Herb Fenster, a recognized Colorado Super Lawyer with a freakish academic CV and professional record.  He first suggested that the University of Colorado at Boulder ought to be set free to operate as a private institution with a public charter à la Cornell University.  This would normally be thought of as controversial (although as a CU-Boulder class of ’02 alum, I think it’s a great idea), but what he announced next will make life interesting in Colorado for years to come.

On behalf of several yet-to-be-named plaintiffs (including several state legislators, apparently), Fenster’s firm (McKenna, Long, and Aldridge, a high powered firm with a presence on K Street) will be suing the State of Colorado in the  United States District Court for the District of Colorado on the following complaints:

1.) The Taxpayer’s Bill of Rights (TABOR) violates Article 4, Section 4 of the United States Constitution (and, by extension, the Enabling Act of Colorado) because, by taking away the power to tax from the General Assembly, Colorado is in fact a direct democracy in violation of federal guarantees of a republican form of government; and

2.) The General Assembly violated the federal False Claims Act by transferring privately donated funds and restricted federal funds to Colorado’s General Fund.

As you may imagine, the entire room was stunned.  For perhaps the first time since he was in diapers, Senator John Morse (D-Jesusland) struggled to speak in well-articulated, complete sentences.

The complaint, which will be filed sometime this fall, will be sealed for sixty days so as to allow the United States Attorney General the opportunity to examine the complaint and decide whether to join as a plaintiff.

From a quick discussion with several lawyer friends who shall go nameless, it appears the plaintiffs have an uphill battle.  There is case law in Oregon regarding challenges related to a “republican” form of government; basically, they fought the law and the law won.  In addition, this could be the kind of case where the Judicial Branch completely steps aside (as happened recently in the ongoing New York Senate coup d’etat clown show power struggle).

As far as I am aware, this is the first time a Colorado constitutional amendment has been challenged in the federal courts since Senator Pat Steadman took down Amendment 2.  Regardless of the outcome, prepare to be thoroughly entertained.



12 thoughts on “The TABOR Battle, Federal Court Re-Mix

  1. If I were the plaintiffs I would much rather use Colorado Skull & Bones…I mean Hogan and Hartson….to launch a credible campaign against TABOR.  

    1. Hogan and Hartson does not specialize in lawsuits against government while the firm chosen here does.  It is a good choice and will serve the plaintiffs well.

  2. It would allow those we elect to govern to do so in a judicious and planned out way – as opposed to making sure that they follow a series of strict regulations that don’t serve the state or its people, or allow them to plan for the future.

    YaY for this!  I can’t wait to see where it goes.

      1. The fact that voters said yes to something doesn’t make it good policy.  Indeed, voters said no to TABOR multiple times before they said yes.

        There is also nothing sacred about the standards that have to be met to get an issue on the ballot or to have it adopted.  Colorado is more lenient in what is necessary to change its supreme law than most states and requires no more to change its constitution by ballot initiative than it does to change its laws.

        Why should a measure approved by a bare majority of voters be inherently more legitimate than a tax or spending proposal adopted by large bipartisan supermajorities of the legislature those same people elected?

        TABOR may be a factor that has helped turn Colorado blue.  It neutralizes the tax and spend liberal argument in political debates to elect candidates because legislators can’t tax and spend without voter approval.

        But, TABOR is clearly bad policy, bad for the state and bad for the people of Colorado.  Sometimes what is good and right is undemocratic.  That is why we have constitutional rights and independent courts.

        At some point, the Colorado Supreme Court may be in a position to state that TABOR is invalid because the state budget is overconstrained and it is impossible to comply with it.  This isn’t the case yet, but that day could easily come.

        There is also potentially an equal protection argument lurking that could invalidate TABOR similar to the argument that invalidated Amendment 2.  To the extent that TABOR unequally burdens the right of particular identifiable subgroups to participate in the democratic process, without a rational basis, it might be constitutionally invalid.

        I don’t have a set of facts that fits that bill, and neither of the claims proposed for the lawsuit – Republican government and the False Claims Act – are solid.  But, that doesn’t mean that there couldn’t be some set of facts that would render TABOR invalid, at least as applied.

        Also, there isn’t necessarily anything improper, even if it is arguably undemocratic, with the Colorado Supreme Court interpreting TABOR narrowly, as it did last year in holding that the legislature can repeal tax breaks to increase revenue.  Laws that upset the basic scheme of the constitutional order (by excessively preferring one kind of citizen input to another) and impair the orderly and rational functioning of government (by forcing legislators to balance choices in ways that they believe to be bad policy in order to comply with TABOR) should be given less deferrence.

  3. The Republican government claim is exceedingly unlikely to prevail.  It certainly doesn’t prohibit a citizen initiative role in policy making coordinate with an elected legislative role.  It fails to state a claim on its face.  

    Also, it is not at all obvious how one would show standing to bring a suit under the Republican government clause.  Who is specifically and personally harmed?  And, how could this suit avoid a dismissal under the “political question” doctrine?  Citizen standing and taxpayer standing to bring suit for generalized violations of the law that hurt everyone are very limited in scope and the U.S. Supreme Court recently narrowed greatly the scope of taxpayer standing.

    The False Claims Act doesn’t apply to state governments or organs of state governments.  The U.S. Supreme Court decided the issue in 2000 in the case Vermont Agency of Natural Resources v. United States ex rel. Stevens.

    Finally, as a general rule, state governments (including the General Assembly, but excluding local governments) can’t be sued in federal court by private individuals without their consent.  The immunity is described as a arising under the 11th Amendment to the U.S. Constitution.  

    No exceptions to this rule (e.g. consent to suit), or ways to get around the rule (e.g. Ex Parte Young (injunctive relief) and Bivens (money damages) suits against state officials rather than states themselves), obviously apply in ths case.  

    Other states and the federal government can sue state governments in federal court, but only in the U.S. Supreme Court, not in the U.S. District Court for the District of Colorado.

    It surprises me that Herb Fenster would suggest such a suit, which as described here appears doomed to fail without a dramatic change in existing statutory and constitutional law.  This looks like a publicity stunt not a suiit that anyone would expect to prevail.

    1. But I keep wondering, What’s the motive?  

      I am glad someone stayed through the afternoon session, because I was getting sick from the lightness of the testimony given in the morning.  

      I kept thinking, “This is not the best set of presentations.”  Hank Brown led off,  underprepared with a broken ankle and a crumpled steno sheet of notes.  He basically cautioned against making ‘across the board cuts’ and other low-watt, off-subject remarks.  Another lowlight was NFIB director Gagliardi (sp?)… a model of simpering anti-tax, pro-incentive drivelation that does a disservice to small businesspeople everywhere.  The only brightspot was the irrepressible Norma Anderson, who continues to speak truth to the Republican flat earth society.  

      But, I left before the afternoon session where a cavalcade of paranoids and narcissists might have finished the job of driving me to dispair of the low candlepower trust the Commission had tapped for testimony.

      1. The Republican government argument is a loser in the courtroom, but it isn’t a bad argument in support of an initiative to modify or repeal TABOR.  

        It culture jams the notion that TABOR is pro-democracy.

        A lawsuit may be a convenient way to float the idea and work the meme into the public consciousness.

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